Environmental Law News Update

In this latest Environmental Law News Update, William Upton KC and Noémi Byrd consider recent guidance on adapting historic buildings as well as a legal challenge to a climate change adaptation plan.

Adapting Historic Buildings for Energy and Carbon Efficiency

It has been a long running debate about how far adaptations should be allowed to be made to historic buildings in order to make them more sustainable. For a long time, there has been a strong resistance to these changes, despite the fact that so many of these listed buildings were themselves the product of changes made over their lives before they were put on the list.

In the spirit of achieving energy and carbon efficiency, Historic England has now published an Historic England Advice Note that will guide how changes should be considered and approved – named, for those who like their acronyms, HEAN 18 (23 July 2024).  Historic England acknowledges in terms that the world faces a climate emergency, and the Advice Note is a welcome response to the changing balance of our priorities.

The Advice Note outlines when approvals are required and what Historic England considers likely to be, and not to be, acceptable in most instances. For example, whilst secondary glazing will generally be acceptable, it remains more equivocal about double glazing despite the improvements in their design and appearance.  Heat pumps are stated to be generally acceptable.   It is also accompanied by useful case studies that range from putting solar panels on the roof of cathedrals, to draught proofing and improving insulation, to installing solar panels in a registered landscape.

It is undeniable that it will take skill and care to resolve the many tricky details that will need to be resolved, as the overriding objective remains the conservation of the listed building and its setting.  This keeps the focus on their historic and architectural significance, and not the sustainability credentials – and it remains the case that the more important the asset, the greater the weight should be given to their conservation.  Maladaptation is to be avoided.  Nevertheless, there is much to be commended in this new guidance, and it is welcome to see the tone of the Advice Note that is set out in its opening sentence that: “Our historic buildings must continue to change and evolve if they are to both contribute to a greener future and be fit for purpose for the people who live in, experience and care for them.“

Climate Change Adaptation Plan – Legal Challenge

The legality of the government’s programme for climate change adaptation (the actions necessary to reduce exposure to, and enhance resilience against, the impacts of climate change) was the subject of a rolled-up hearing on 23-34 July in the High Court. The claimants are Friends of the Earth (FoE) and two individuals, one of whom has lost his home due to coastal erosion from severe storms, the other being a care home resident with health conditions made worse by seasonal heatwaves.

The challenge is to “NAP3”, the third national adaptation report made pursuant to the government’s duty under section 58(1) of the Climate Change Act 2008 to lay 5-yearly climate change adaptation programmes before Parliament “[..] setting out (a) the objectives of Her Majesty’s Government in the United Kingdom in relation to adaptation to climate change”  and “(b)  the Government’s proposals and policies for meeting those objectives”. Section 58 explicitly requires the adaptation programme to address the risks identified in the government’s section 56 climate change impact report, which must in turn take the Climate Change Committee (CCC)’s advice into account. The CCC’s assessment of NAP 3 finds that it contains no measurable adaptation goals or specific outcomes for any sector.

Grounds 1 and 2 of the claim allege failure to comply with the requirements of section 58 and on the face of it engage relatively straightforward questions of statutory interpretation. The claimants contend under Ground 1 that the NAP3 “risk reduction goals” are not “objectives” within the meaning of section 58(1)(a), and under Ground 2 that there is no evidence that an assessment of the risks to the delivery of NAP3 plans and proposals has been carried out as required. On Ground 2 FoE finds support in its partially successful challenge to the government’s Net Zero Strategy ([2022] EWHC 1841), and specifically Holgate J’s finding that risks to the delivery of policies and proposals under the strategy were an “obviously material” consideration which had to be taken into account.

In Grounds 3 and 4 the claimants turn their sights respectively on the government’s alleged breach of the “public sector equality duty” (PSED) in section 149 of the Equality Act 2010, and unlawful interference with the individual claimants’ rights under Articles 2, 8, 14 and A1P1 of the European Convention. These grounds reach into more difficult territory, though the claim overall is said to be “groundbreaking”. The PSED question of whether there has been “due regard” to the needs of people with protected characteristics, such as disability, is highly context-sensitive. Challenges to government climate policy on human rights grounds must grapple with what has been described as the “insuperable problem” that an administrative framework under the Climate Change Act 2008 exists, and the policies made under it are high-level social and economic policies for which the government has a wide margin of discretion. However, the ECtHR’s judgment in KlimaSeniorinnen v Switzerland earlier this year may have made that problem easier to surmount: the court found that Article 8 encompasses a right to effective protection from the serious adverse effects of climate change on health and quality of life, and further that due to critical gaps in Switzerland’s climate regulatory framework it had failed to comply with its positive obligations under the European Convention. If this claim succeeds on grounds 1 and 2 (the inadequacy of NAP3) it may be that success on ground 4 follows. In any event, the outcome of the case will be significant.